The following information regarding children and family law has been put together as an initial guide. It is important to understand that rather than considering the 'rights' of parents, family law talks of 'parental responsibility' for a child. For further advice contact one of our expert Family Law Solicitors who will be happy to help.
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Children, Parents and the Law
If a child's mother and father were married to each other at the time of the birth of the child, they each have parental responsibility for the child. More than one person may have parental responsibility for the same child at the same time.
Where a child's father and mother were not married to each other at the time of the child's birth, the mother has parental responsibility for the child and so does the father if named on the birth certificate but the father can acquire parental responsibility by agreement or by seeking a court order.
The Children Act 1989 is the main piece of legislation dealing with family disputes about children. Parental responsibility is defined by Section 3 of the Act as: 'all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property'. In many cases where matters are agreed between all parties with parental responsibility, no order in respect of the child will be made.
The Children Act sets out that the child's welfare is the paramount consideration when the courts consider any question in relation to the upbringing of a child and the court will apply what is known as the 'welfare checklist' to help it work out what’s best. The welfare checklist looks at:
- The child's wishes and feelings, considered in the light of his/her age and understanding
- Their physical, emotional and educational needs
- Their age, sex, background and any characteristics which the court considers relevant
- The likely effect of any change in the child’s circumstances
- Any harm which the child has suffered or is at risk of suffering
- How capable each parent is of meeting the child’s needs.
Even if an application is made to a court in respect of a child, the court will not make the order unless it considers that doing so will be better for the child than making no order at all.
It is important to understand that rather than considering the 'rights' of parents, family law talks of 'parental responsibility' for a child.
1. Child Arrangements Orders
The courts can make orders dealing with the arrangements as to with whom a child is to live, spend time, or otherwise have contact with and when a child is to live, spend time or otherwise have contact with any other person. Such orders are now known as Child Arrangements Orders.
2. Prohibited Steps Orders
In addition to Child Arrangements Orders the court can also make Prohibited Steps Orders, an order that prevents a person from taking certain steps/action concerning a child e.g. taking a child abroad.
3. Specific Issue Orders
A Specific Issue Order is an order where the court will determine a specific question which has arisen where the persons with parental responsibility cannot agree e.g. where parents cannot agree what school their child should attend.
Mediation Information and Assessment Meeting/Mediation
For most types of applications relating to children (unless certain exemptions apply) before an application can be made to court it is now mandatory to first attend a Mediation Information and Assessment Meeting to consider whether the dispute can be resolved without the need to proceed with court action and through mediation.
Where court applications are necessary there is usually an initial hearing at which time sometimes it is possible to reach agreement. If agreement cannot be reached, then the court gives directions for evidence to be filed in the form of statements. The court may make other directions such as ordering a Cafcass* report or other experts to file reports before the matter comes listed for a hearing to determine the application.
*Cafcass is the Children and Family Court Advisory Support Service – an organisation representing children in family court cases.
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If you need further advice regarding children and family law our team would be happy to help. Contact us now or call into your local office.